BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          SCA 12 (Runner and Huff)
          Version: April 13, 2016
          Hearing Date: May 3, 2016
          Fiscal: Yes
          Urgency:  No
          RD   


                                        SUBJECT
                                           
                   University of California:  California residents

                                      DESCRIPTION  

          This measure proposes a constitutional amendment that would  
          require the Regents of the University of California, as  
          administrators of a public trust, to act in the best interests  
          of the people of California. This measure would require the  
          regents to honor their fiduciary duty to California residents  
          who aspire to take advantage of the University of California's  
          promise of a high-quality college education by ensuring that  
          priority in admissions is given to applicants who are California  
          residents.  This measure would make other technical or  
          non-substantive changes. 

                                      BACKGROUND  

          On March 29, 2016, the California State Auditor released a  
          report entitled, The University of California: Its Admissions  
          and Financial Decisions have Disadvantaged California Resident  
          Students.  According to that report:

            The University of California (university) is one of the  
            premier public university systems in the nation, enrolling  
            more than 252,000 students at its 10 campuses as of the fall  
            of 2014. As a public institution, the university should serve  
            primarily those who provide for its financial and civic  
            support-California residents. However, over the past several  
            years, the university has failed to put the needs of residents  
            first. In response to reduced state funding, it has made  








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            substantial efforts to enroll more nonresident students, who  
            pay significantly more annual tuition and mandatory fees than  
            resident students-$37,000 compared to $12,240 in academic year  
            2014-15. The results are stark: From academic years 2010-11  
            through 2014-15, total nonresident enrollment at the  
            university increased by 82 percent, or 18,000 students, while  
            resident enrollment decreased by 2,200 students, or 1 percent.

          The report lists among its key findings that the university has  
          undermined its commitment to residents in an effort to increase  
          its revenue by recruiting and enrolling non-residents and  
          specifically cites the following: 
           total nonresident enrollment increased by 82 percent (or  
            18,000), while resident enrollment decreased by 1 percent (or  
            2,200 students) from academic years 2010-11 through 2014-15; 
           from academic years 2005-06 through 2014-15, nonresident  
            undergraduate enrollment increased 432 percent while during  
            the same time period resident enrollment increased only 10  
            percent. In academic year 2014-15, nearly one-third of the  
            students the university admitted were nonresidents;
           despite a 52 percent increase in resident applicants, resident  
            enrollment increased by only 10 percent over the last 10 years  
            while non-resident enrollment increased by 432 percent;
           total nonresident enrollment increased by 82 percent, while  
            resident enrollment decreased by 1 percent;
           the University modified its admission standard for  
            non-residents and admitted nearly 16,000 non-residents over  
            the past three years with lower academic qualifications than  
            the median for admitted residents; and
           from academic years 2005-06 through 2014-15, the university's  
            campuses denied admission to nearly 4,300 residents whose  
            academic scores met or exceeded all of the median scores for  
            nonresidents whom the university admitted to the campus of  
            their choice.  (See California State Auditor, Report 2015-107,  
            The University of California: Its Admissions and Financial  
            Decisions Have Disadvantaged California Resident Students  
            (Mar. 29, 2016)  
             [as of  
            Apr. 27, 2016].)

          This measure now seeks to put forth of the California voters a  
          constitutional amendment to require the regents of the  
          University of California to honor their fiduciary duty to  
          California residents who aspire to take advantage of the  
          University of California's promise of a high-quality college  







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          education by ensuring that priority in admissions is given to  
          applicants who are California residents.  

          This bill was heard in the Senate Education Committee on April  
          20, 2016, and approved on a vote of 6-0.

                                CHANGES TO EXISTING LAW
           
           Existing federal law  , the U.S. Constitution's Privileges or  
          Immunities Clause, provides that no State shall make or enforce  
          any law which shall abridge the privileges or immunities of  
          citizens of the United States.  (U.S. Const., 14th Amend., Sec.  
          1, cl. 2.)  

           Existing federal law  , the U.S. Constitution's Commerce Clause,  
          grants Congress the power to regulate commerce "with foreign  
          nations, and among the several states, and with the Indian  
          Tribes."  (U.S. Const., art. 1, Sec. 8, cl. 3.)  The dormant  
          Commerce Clause is inferred from that clause under the theory  
          that this grant of power implies a negative converse-a  
          restriction prohibiting a state from passing legislation that  
          improperly burdens or discriminates against interstate commerce.  


           Existing law  , Article IX of the California Constitution,  
          establishes the UC as a public trust to be administered by the  
          Regents of the UC and grants the Regents full powers of  
          organization and government, subject only to such legislative  
          control as may be necessary to ensure security of its funds,  
          compliance with the terms of its endowments, statutory  
          requirements around competitive bidding and contracts, sales of  
          property and the purchase of materials, goods, and services.   
          (Cal. Const. art. IX, Sec. (9)(a).)

           This measure  would, contingent upon voter approval, amend the  
          California Constitution to require the Regents of the University  
          of California, as administrators of a public trust, to act in  
          the best interests of the people of California. This measure  
          would require the regents to honor their fiduciary duty to  
          California residents who aspire to take advantage of the  
          University of California's promise of a high-quality college  
          education by ensuring that priority in admissions is given to  
          applicants who are California residents.  

           This measure  would make other technical or non-substantive  







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          changes. 
           
                                        COMMENT
           
          1.   Stated need for the bill  

          According to the author: 

            The UC includes on its admissions website the following  
            notice: 
            As a public institution, we prioritize admission for  
            California residents. Notwithstanding this declaration,  
            California students and parents share a growing perception  
            that seats at the University of California are being sold to  
            the highest bidder; that California students are being passed  
            over for less qualified non-residents who are willing to pay  
            more. In recent years the nine undergraduate campuses of the  
            University of California system have attracted an ever growing  
            number of out of state and international students applying for  
            freshman seats. In 2014 and again in 2015 the number of  
            California students enrolling as freshman declined while the  
            number of both out of state and international freshman  
            increased.  Between 2010 and 2015 the system-wide number of  
            California undergraduates has declined marginally while the  
            number of nonresident undergraduates has surged by more than  
            20,000 students.  The nonresident fees paid by these students  
            provide the University of California almost $500,000,000.00  
            (half a billion dollars) in additional revenue each year.       
                                   

            The [proposed] constitutional provision will read:  As  
            administrators of a public trust, the regents shall act in the  
            best interests of the people of California. The regents shall  
            honor their fiduciary duty to California residents who aspire  
            to take advantage of the University of California's promise of  
            a high-quality college education by ensuring that priority in  
            admissions is given to applicants who are California  
            residents.            
             
          2.   Fourteenth Amendment's Privileges or Immunities Clause:  
          right to travel  

          This measure, if approved by the voters, would require that the  
          state's public universities give priority to California  
          residents (over non-residents).   The Supreme Court has long  







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          recognized that the Constitution, together with the nature of  
          the federal union, protects the right to travel throughout the  
          U.S., uninhibited by statutes, rules, or regulations that  
          unreasonably burden or restrict this movement.  In Saenz v. Roe  
          (1999) 526 U.S. 489, 500 the Court detailed that the right  
          encompasses at least three components: (1) the right to enter  
          and to leave another state; (2) the right to be treated as a  
          welcome visitor rather than an unfriendly alien when temporarily  
          present in the second State; and, (3) for travelers who elect to  
          become permanent residents, the right to be treated like other  
          (longer) citizens of that State.  

          This third aspect of travel (the right of new residents to be  
          treated the same as longer residents of the state) is protected  
          by the 14th Amendment's privileges or immunities clause.  (Id.  
          at 502.)  Thus, it is constitutionally impermissible for a state  
          to enact durational residency requirements for the purpose of  
          inhibiting the migration by needy persons into the state.   
          Further, the Court has held that a classification having the  
          effect of imposing a penalty on the exercise of the right to  
          travel violates the Equal Protection Clause unless it is shown  
          to be necessary to promote a compelling governmental interest.   
          (Id. at 499.)  In Saenz, specifically, the Court held that while  
          the plaintiffs were new to California, they had the right to be  
          treated the same as long-time residents, noting that there was  
          no reason for the state to fear that citizens of other states  
          would take advantage of California's relatively generous welfare  
          benefits because the proceeds of each welfare check would be  
          consumed while the plaintiffs remained within the state.  Even  
          still, however, the Court distinguished welfare benefits them  
          from a "readily portable benefit, such as a divorce or a college  
          education," for which durational residency requirements have  
          been upheld in other cases.  (Id. at 505, citing Sosna v. Iowa  
          (1975) 419 U.S. 393; Vlandis v. Kline (1973) 412 U.S. 441.) 

          Notably, this bill does not have a durational requirement of  
          residency-it merely requires that a person be a California  
          resident.  The Court has repeatedly distinguished residency  
          requirements, which provide a benefit to current residents that  
          is not available to nonresidents, from durational residency  
          requirements.  (See Chemerinksy, Constitutional Law Principles  
          and Policies (2011) 4th Edition, p. 888.)  Accordingly, it is  
          unlikely that this bill would be deemed to infringe upon the  
          right to travel.  








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          3.   Dormant Commerce Clause  

          The dormant Commerce Clause is the principle that state and  
          local laws are unconstitutional if they place an undue burden on  
          interstate commerce.  While there is no constitutional amendment  
          that expressly makes this declaration, the Supreme Court has  
          inferred this principle from the grant of power to Congress to  
          regulate commerce among the states under Article I, Section 8 of  
          the U.S. Constitution.  The modern approach to the clause gives  
          the court significant discretion and involves a balancing of the  
          benefits of the law against the burdens it imposes on interstate  
          commerce.  How the balancing is done, however, depends on  
          whether the law discriminates against out-of-staters or treats  
          in-staters and out-of-staters alike.  (Chemerinksy,  
          Constitutional Law Principles and Policies (2011) 4th Edition,  
          p.439-440.) 

          Accordingly, the dormant Commerce Clause usually involves the  
          following analysis:  First, does the state law discriminate  
          against interstate commerce by treating out-of-staters  
          differently than in-staters, and thus burden interstate  
          commerce? Second, if the law does not discriminate, then the  
          presumption is in favor of upholding the law and it will be  
          invalidated only if it is shown that the burden on interstate  
          commerce outweighs the benefits of the law.  Third, if the law  
          is discriminatory, then there is a strong presumption against  
          the law and a court will uphold it only if it is necessary to  
          achieve an important governmental purpose. The court will also  
          look at whether there were alternative nondiscriminatory means  
          available.  (Id. at 441.) 

          "The central rationale for the rule against discrimination is to  
          prohibit state or municipal laws whose object is local economic  
          protectionism, laws that would excite those jealousies and  
          retaliatory measures the Constitution was designed to prevent."  
          (C&A Carbone v. Town of Clarkstown (1994) 511 U.S. 383, 389.)    
          Accordingly, as reflected above, in a dormant Commerce Clause  
          case, a court is initially concerned with whether the law  
          facially discriminates against out-of-state actors or has the  
          effect of favoring in-state economic interests over out-of-state  
          interests. Discriminatory laws are almost always declared  
          unconstitutional, and will be allowed only if the bill is  
          necessary (the least restrictive means), to achieve a  
          nonprotectionist purpose, under a strict scrutiny analysis.   
          (Chemerinksy at 460.)  







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          Here, while the proposed measure would discriminate under the  
          first prong of the test above, following the third prong, there  
          is arguably an important governmental interest in ensuring that  
          state residents have access to an affordable, high-quality,  
          public, higher education institution.   In other words, it does  
          not appear that the bill is solely about economic protectionism  
          which would be in violation of the dormant commerce clause.  
          Whether this proposed constitutional amendment furthers that  
          interest in the least restrictive manner would likely depend on  
          what constitutes "priority."  (See Comment 4.)  Arguably,  
          whether or not this measure would be considered sufficiently  
          narrow to the bill's stated compelling interest is ultimately a  
          question for the courts. 

          4.   Priority  

          Given that this bill sets forth a constitutional amendment  
          before the voters, and not legislation that could be readily  
          clarified when problems of interpretation arise, the authors may  
          wish to consider adding further clarity as to what "priority"  
          means and when "priority" must be given.  Would priority mean  
          preference if all other things are equal between two candidates?  
          Or might it mean accepting all California resident applicants  
          before admitting any non-residents?  As a matter of public  
          policy, absolute clarity is arguably a necessity as these public  
          universities could foreseeably face suit for failure to meet  
          their fiduciary duty to California's students.  Moreover, to  
          ensure that this constitutional amendment would withstand a  
          challenge under the federal constitution's dormant commerce  
          clause also likely depends upon the specificity of this term.


           Support  :  None Known 

           Opposition  :  None Known 
                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :   None Known 

           Prior Legislation  :  SCA 22 (Rubio, 2012) would have proposed a  
          state Constitutional Amendment to add a new section to Article  
          IX of the State Constitution that would require that out-of  







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          state undergraduate students make up no more than 10 percent of  
          the total undergraduate enrollment, and no more than 10 percent  
          of the incoming class at each campus of the University of  
          California, beginning with the 2013-14 academic year.  The bill  
          died in the Senate Education Committee without a hearing. 

           Prior Vote  :  Senate Education Committee (Ayes 6, Noes 0)

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